trial memo partial responsibility

IN THE CIRCUIT COURT OF THE STATE OF OREGON
Defendant has filed notice of the intent to present evidence, including expert testimony,
on the issue of partial responsibility and lack of intent, pursuant to ORS 161.300. This trial
memo explores the issues and law that Defendant expects will be presented at trial regarding
16 partial responsibility and lack of intent. Defendant relies upon the authorities referenced in this
17 trial memo as well as any and all testimony and other points and authorities relied upon at trial.
ORS 163.115(1)(a) provides that criminal homicide constitutes murder when it is
20 committed “intentionally.” The word “intentionally, when used with respect to a result or to 21 conduct described by a statute defining an offense is defined as “a conscious objective to cause 22 the result or engage in the conduct so described.” ORS 161.085(7). “The State ha[s] the burden 23
of proving all the material elements of the complaint, including intent, beyond a reasonable
doubt.” State v. Booth, 284 Or 615, 619, 588 P2d 614 (1978). See also Mullaney v. Wilbur, 421
Katherine O. Berger, OSB # 87072 Attorney at Law 3527 NE 15th Ave., #103 Portland, OR 97212-2356 503/319-7393
US 684, 95 S Ct 1881, 44 L Ed 2d 508 (1975); In re Winship, 397 US 358, 90 S Ct 1068, 25 L
1 Ed 2d 368 (1970); Criminal Law Revision Commission Minutes, September 12, 1969, p. 7. 2
Evidence that the actor suffered from a mental disease or defect
is admissible whenever it is relevant to the issue of whether the
actor did or did not have the intent which is an element of the crime.
ORS 161.300 was enacted by the 1971 Oregon Legislature as part of the revision of
8 substantive criminal law proposed by the Criminal Law Revision Commission. According to the
9 Commentary to the Proposed Criminal Code, 1971, discussing what is now ORS 161.300,
“A defendant may be charged with a crime which includes an
element such as specific intent or premeditation. . . . The defendant may not be insane within the meaning of the M’Naughten rule, but
he may be suffering from a mental disease or defect which directly affects his capacity to form a specific intent or purpose. In this situation,
a growing number of jurisdictions now permit such defendant to introduce evidence of his mental condition to negate the element of
specific intent for the purpose of reducing the defendant’s responsibility (and consequent punishment) to a lesser offense included within the
crime charged. This would not enable the defendant to escape conviction
entirely (as he would if he established his insanity under the M’Naughten rule). Instead, the jury may find him guilty under the lesser included
“The trend to the subjective theory of culpability embodied in the partial responsibility doctrine is apparent. . . .”
“The basic theory underlying the partial responsibility doctrine is that the
verdict and sentence should be tied more accurately than in the past to the
Katherine O. Berger, OSB # 87072 Attorney at Law 3527 NE 15th Ave., #103 Portland, OR 97212-2356 503/319-7393
“Adoption of the doctrine of partial responsibility would not be without
analogous precedent in Oregon. ORS 136.400 (in effect since 1864) provides in part that ‘whenever the actual existence of any particular
motive, purpose or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration
of the fact that the defendant was intoxicated at the time, in determining the purpose, motive or intent with which he committed the act.’ ”
Commentary to Proposed Criminal Code, 1971, Section 39, pp 38-39.
The Minutes of the Criminal Law Revision Commission also help to explain the rationale
7 behind adoption of the partial responsibility statute. Professor Platt explained,
“The proposed draft, * * * makes it relevant that the evidence brought in to show a lessor mens rea or that the defendant is incapable of the
mens rea charged. * * * [The proposed statute] attempts to make the definition of crime more responsive to the culpability of the individual
defendant. The stress. * * * is on subjectivity rather than the old
objective rule that the man intends all the consequences of his act.”
12 State v. Smith, 154 Or App 37, 960 P2d 877 (1998), quoting Minutes, Criminal Law Revision
Commission, Subcommittee No. 3, January 18, 1969 16-17.
RESEARCH ON DEVELOPMENT OF THE TEEN BRAIN AND ITS
RELATIONSHIP TO ABILITY TO FORM REQUISITE CRIMINAL INTENT
In 1988, the United States Supreme Court struck down the death penalty for persons
16 under the age of 16 at the time of their offense for violating the Eighth Amendment of the United 17 States Constitution’s prohibition against cruel and unusual punishment. Thompson v. Oklahoma, 18
487 US 815 (1988). Part of the Court’s reasoning was based upon the concept “that punishment
should be directly related to the personal culpability of the criminal defendant.” California v.
21 Brown, 479 US 538, 545 (1987)(O’Conner, J. concurring).
The United States Supreme Court has acknowledged that adolescents are different than
23 adults. In Eddings v. Oklahoma, 455 US 104 (1982), the Court stated:
Katherine O. Berger, OSB # 87072 Attorney at Law 3527 NE 15th Ave., #103 Portland, OR 97212-2356 503/319-7393
But youth is more than a chronological fact. It is a time and condition
of life when a person may be most susceptible to influence and to psychological damage. Our history is replete with laws and judicial
recognition that minors, especially in their earlier years, generally are less mature and responsible than adults. Particularly “during the
formative years of childhood and adolescence, minors lack the experience, perspective and judgment” expected of adults. Bellotti v. Baird,
443 US 622, 635 (1979). Eddings v. Oklahoma, 455 US at 115-116 (footnotes omitted).
6 Therefore, the Thompson Court concluded that:
[i]nexperience, less education and less intelligence make the teenager less able to evaluate the consequences of his or her conduct,
while, at the same time, he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult. The reasons why
juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally
In 1989, the United States Supreme Court refused to extend the prohibition of the death
penalty to those persons, who at age 16 or 17 commit a capital offense. Stanford v. Kentucky,
492 US 361 (1989). However, in 2005, the United States Supreme Court finally did rule that it
16 was unconstitutional to execute a person who was under 18 years of age at the time of the
17 commission of the crime. Roper v. Simmons, 543 US ______(2005).
Between 1989 and 2005, there has been a significant increase in our understanding of
19 how a teenager’s brain is developing and how that development can account for the differences
20 in moral reasoning and impulse control that is seen between juveniles and adults. 21
Since the early 1990’s, a number of scientific researchers have
been examining the brains of adolescents using new technologies, such as magnetic resonance imaging (MRI), initially for the
purposes of discovering the causes of such disabilities as attention deficit disorder (ADHD) and autism, and this research has led to
some important discoveries about the brains of all teenagers. Dr. Jay Giedd at the National Institute of Mental Health (NIMH) in
Katherine O. Berger, OSB # 87072 Attorney at Law 3527 NE 15th Ave., #103 Portland, OR 97212-2356 503/319-7393
Bethesda, Maryland, has been using high-powered MRI snapshots
of the brains of about 1,800 children and teenagers taken at regular intervals for about 13 years to chart the neurological development
of the brains longitudinally. He and others have tracked the individual brains of young people as they matured by observing
them with MRIs at periodic intervals. The study shows that the frontal lobes of the brain continue to mature during adolescence.
This is especially true in the prefrontal cortex, which plays a critical role in the executive functions of the brain – those involved
when a person plans and implements behaviors by selecting,
coordinating, and applying the cognitive skills necessary to accomplish goals.
Robert E. Shepard, Jr., “The Relevance of Brain Research to Juvenile Defense” 19 Crim. Just.
Dr. Giedd’s research is just one example of the many research projects which are
10 resulting in evidence that the concrete differences between adolescents and adults are 11 anatomically based. “Their judgments, thought patterns, and emotions are different from adults’, 12 and their brains are physiologically underdeveloped in the areas that control impulses, foresee
consequences, and temper emotions. They handle information processing and the management of
emotions differently from adults.” Brief of Amicus Curiae American Medical Association et al.
16 at 5 in Roper v. Simmons, 543 US _____ (2005). Scientists are finding that the anatomical
17 immaturity of the teenage brain impacts the behaviors of adolescents in two important areas.
First, adolescents rely for certain tasks, more than adults, on the amygdala, the area of the brain associated with primitive impulses
of aggression, anger, and fear. Adults, on the other hand, tend to process similar information through the frontal cortex, a cerebral area
associated with impulse control and good judgment. Second, the
regions of the brain associated with impulse control, risk assessment, and moral reasoning develop last, after late adolescence.
The amygdala is part of the limbic system, which is the emotional center of the brain.
This is the part of the brain that was developed to detect danger, triggering what is typically
Katherine O. Berger, OSB # 87072 Attorney at Law 3527 NE 15th Ave., #103 Portland, OR 97212-2356 503/319-7393
known as a “flight or fight” response. The frontal cortex of the brain is also part of the limbic
1 system, but the frontal cortex manages executive functioning, such as information processing 2 functions and cognitive abilities, including decision making, risk assessment, impulse control
and making moral judgments. The frontal lobe modulates the amygdala, and therefore a still-
developing frontal lobe is not able to completely check the immature and impulsive functions of
6 the amygdala. See, id. at 12 – 15.
More importantly, the frontal lobes of the brain are not developed well into late
8 adolescence and young adulthood. There are two important changes that occur to the frontal
9 lobes of the brain during adolescence and young adulthood. The first is a process known as
10 pruning and the second is the process of myelination. It has been known for decades that the 11 process of pruning occurs with the development of the brain. At first, it was thought there was 12 one time that pruning – a use it or lose it process – occurred. It was originally believed that the
brain pruned out neural pathways that were not being used only shortly after birth. However,
recent research, available only after the development of MRI technology, shows that there is a
16 preadolescent increase in gray matter in the brain followed by a second incidence of pruning
17 which continues throughout early adolescence. The effect of pruning is that the brain, after
18 pruning, has enhanced functioning in that area of the brain. The frontal lobes, which are
19 associated with regulation of behavior and the stifling of impulses, are some of the last areas of
20 the brain to be pruned. See, id. at 16-20. 21
The second change that occurs in a brain during the teenage years is an increase in the
22 process of myelination. Mylination is the process of the brain’s axions being surrounded with a 23
fatty white substance, myelin. “The presence of myelin makes communication between different
parts of the brain faster and more reliable.” Goldberg, The Executive Brain: Frontal Lobes & the Katherine O. Berger, OSB # 87072 Attorney at Law 3527 NE 15th Ave., #103 Portland, OR 97212-2356 503/319-7393 Civilized Mind at 144 (2001). Once again, the frontal lobes are one of the last areas of the brain
1 to mature as measured through the process of myelination. See, Brief of Amicus Curiae 2 American Medical Association et al. at 17-18 in Roper v. Simmons, 543 US _____ (2005).
As Justice O’Connor stated in her concurring opinion in California v. Brown, the
punishment for a criminal act should be related to the personal culpability of the criminal
6 defendant. 479 US at 545. However, it is obvious that the question of how culpable a juvenile is
7 cannot be answered just by looking at the nature of his or her behavior. The law looks at the
8 ability of the individualized defendant to form the requisite state of mind to determine the
9 culpability of that defendant, because it is recognized that a person can exhibit poor judgment
10 because of some sort of mental defect or because of some sort of mental disease or both. 11
Bi-polar disorder is difficult to recognize and diagnose in youth. . .
because it does not fit precisely the symptom criteria established for
adults, and because its symptoms can resemble or co-occur with those
of other common childhood-onset mental disorders. In addition, the
symptoms of bipolar disorder may initially be mistaken for normal
emotions and behaviors of children and adolescents. But unlike normal
mood changes, bipolar disorder significantly impairs functioning in school, with peers, and at home with family. . . .
Symptoms of mania and depression in children and adolescents may
manifest themselves through a variety of different behaviors. When manic, children and adolescents, in contrast to adults, are more likely to be irritable . . .
than be elated or euphoric. When depressed, there may be many physical complaints such as headaches, muscle aches, stomachaches, or tiredness, frequent
absences from school or poor performance in school, talk of or efforts to run
away, . . . complaining, unexplained crying, social isolation, poor communication, and extreme sensitivity to rejection or failure.
National Institute of Mental Health, Child and Adolescent Bipolar Disorder: An Update from the
23 National Institute of Mental Health, 2000 (NIH Publication No 00-4778), pp 1-2.
Katherine O. Berger, OSB # 87072 Attorney at Law 3527 NE 15th Ave., #103 Portland, OR 97212-2356 503/319-7393
The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text
1 Revision (2000) [hereinafter DSM IV-TR] lists Bipolar Disorder as a mood disorder. DSM IV – 2 TR at 345. It is characterized by recurrent episodes of depression, mania and/or mixed symptom
states. There are unusual and extreme shifts in mood, energy and behavior that significantly
interfere with functioning. The symptoms associated with a manic state are severe changes in
6 mood – either extremely irritable or overly silly and elated; increased energy with a decreased
7 need for sleep, increased talking with pressured speech and changing topics too quickly,
8 distractibility, hyper-sexuality (“manifested by flirtatious or sexualized behaviors that are both
9 age- and situation-inappropriate.” Geller and Tillman, “Hypersexuality in Children with Mania:
10 Differential Diagnosis and Clinical Presentation,” Psychiatric Times, October 2004 Vol XXI, 11 Issue 12) and increased participation in risky behaviors or activities. Depressive symptoms 12 include difficulty concentrating, recurrent thoughts of suicide, loss of enjoyment in activities
once enjoyed, persistent sad or irritable mood, loss of energy, feelings of worthlessness or
inappropriate guilt, and difficulty sleeping or oversleeping. NIH Publication 00-4778, pp 1-2.
Bi-polar disorder is a “mental disease” for purposes of ORS 161.295(2). Youth with bi-
17 polar disorder experience impairment of information processing, which results in poor judgment,
18 during depression cycles and during manic cycles, the youth can experience an increase in risk-
19 taking behaviors, during which the youth cannot comprehend any future consequences of their
20 behavior. Ryan, “Mood disorders in juvenile offenders” In Juvenile justice fact sheet, Institute 21 of Law, Psychiatry and Public Policy, University of Virginia, 2000. 22
Accurate diagnosis of bi-polar disorder requires identification of episodes of mania or
hypermania. These conditions are often missed, however, since the may not be recalled as
illnesses. Patients may recall behavioral changes or symptoms better than discrete episodes of
Katherine O. Berger, OSB # 87072 Attorney at Law 3527 NE 15th Ave., #103 Portland, OR 97212-2356 503/319-7393
illness, For example, distorted interpersonal behavior, including a lack of respect for
1 interpersonal boundaries or appropriate social limits, can be a destructive characteristic of manic 2 episodes. Delusions and formal thought disorder are common in manic episodes. However, the
most common first reported symptom for adolescents with bi-polar disorder is depression. A
naturalistic chart study found 37% of patients with bi-polar disorder have been initially
6 misdiagnosed as having major depressive disorder. Swann, Geller, Post, et al. “Practical Clues
7 to Early Recognition of Bi-Polar Disorder: A Primary Care Approach” Prim Care Companion J
8 Clin Psychiarty 2005, 7(1) p 15.
Bi-polar disorder is also “associated with widespread cognitive deficits.” Julien, A
10 Primer of Drug Action, Fourth Edition, 2005 p 306. Recent neuropsychological testing show that 11 there continues to be cognitive impairments during periods of euthymia (periods without obvious 12 symptoms) that are due to cortical-subcortical-limbic disruption. Olley, Malhi, Mitchell, et al.
“When Euthymia is Just Not Good Enough: The Neuropsychology of Bipolar Disorder,” Journal of Nervous & Mental Disease, 193(5), 323-330, May 2005.
Recently, several small studies have examined the neurocognitive function in pediatric
17 bipolar disorder. Central findings from these studies document neurocognitive deficits in
18 pediatric bipolar disorder in the domains of sustained attention, working memory, verbal
19 memory and executive functioning. Most importantly, researchers have found that “treated
20 euthymic [pediatric] patients performed no better than acutely ill unmedicated [pediatric] 21 patients. It is both intriguing and disappointing to note that similar pattern of neurocognitive 22 deficits in unmedicated manic subjects and patients who were medicated and clinically stable.” 23
Pavuluri, Schenkel, Aryal, et al. “Neurocognitive Function in Unmedicated Manic and
Medicated Euthymic Pediatric Bipolar Patients,” Am J Psychiatry, 163:2, February 2006.
Katherine O. Berger, OSB # 87072 Attorney at Law 3527 NE 15th Ave., #103 Portland, OR 97212-2356 503/319-7393
Additionally, recently the NIMH released a study which shows that bipolar youth
1 misinterpret facial expressions to be hostile more often than their counterparts, which suggests 2 that bipolar youth see emotion where other people do not. These results suggest that bipolar
disorder most likely stems from impaired development of specific brain circuits. Kohnle, “Teens
with Bipolar Disorder Misinterpret Facial Expressions” NIH/National Institute of Mental Health,
6 news release, May 29, 2006. The brain structures which exhibit structural and/or functional
7 anomalies in persons with bipolar disorder include the ventrolateral and medial prefrontal
8 cortices and the amygdala. Both literature and research data suggest that deficits may be more
9 marked on tasks that pair inhibition and execution of alternative behaviors than on tasks that
10 involve inhibition alone. McClure, Treland, Snow, et al. “Deficits in Social Cognition and 11 Response Flexibility in Pediatric Bipolar Disorder,” Am J Psychiatry, 162:9, September 2005, pp 12 1644-51
ANTIDEPRESSANT USE IN YOUTH WITH BIPOLAR DISORDER
Lexapro (generic name – escitalopram) was released in the United States in 2002 for
16 treatment of major depressive disorder, although it is also effective in the treatment of panic
17 disorder, obsessive-compulsive disorder and social anxiety disorders. Id., p. 284. Lexapro is one
18 of the anti-depression medications known as Selective Serotonin Reuptake Inhibitors (SSRI).
However, antidepressants should not be used to treat persons with bipolar disorder,
20 without a mood stabilizer, due to a major risk of “increasing anxiety states, potentially inducing 21 mania, more frequent cycling and increases in aggressive outbursts and temper tantrums.” 22 Papolos, MD and Papolos, The Bipolar Child, Broadway Books, 2002, p. 75. 23
Katherine O. Berger, OSB # 87072 Attorney at Law 3527 NE 15th Ave., #103 Portland, OR 97212-2356 503/319-7393
Defendant XXXXX will present evidence regarding partial responsibility, showing that
2 she was not able, as a result of a mental disease or defect, to form the requisite intent for the
crimes of Aggravated Murder or Murder. While three different and independent bases for
establishing inability to form intent have been discussed separately in this trial memo [1) the
6 immaturity of the teenage brain, 2) bipolar disorder and 3) prescription of an incorrect, and
7 potentially harmful, medication, we will show that XXXXXXX was suffering from the effects of
8 each of these at the time of the alleged incident. While each of these grounds qualifies in itself as
9 a basis for a person being unable to form criminal intent, the cumulative effect upon XXXXXXX
10 at the time of the alleged event clearly made her unable to form criminal intent. 11
Katherine O. Berger, OSB # 87072 Attorney at Law 3527 NE 15th Ave., #103 Portland, OR 97212-2356 503/319-7393